Hervey v. Mo. Dep't of Corr., SC 92145.

• Decision Date: 14 August 2012
• Docket Number: No. SC 92145.,SC 92145.
• Parties: Deborah HERVEY, Respondent, v. MISSOURI DEPARTMENT OF CORRECTIONS, Appellant.
• Court: Missouri Supreme Court

379 S.W.3d 156

Deborah HERVEY, Respondent,

v.MISSOURI DEPARTMENT OF CORRECTIONS, Appellant.

No. SC 92145.

Supreme Court of Missouri, En Banc.

Aug. 14, 2012.

General Counsel Ronald Holliger, James R. Ward and Julianne O. Germinder, Attorney General's Office, for Appellant.

Anthony L. DeWitt, Edward D. Robertson Jr. and Mary Doerhoff Winter of Bartimus, Frickleton, Robertson & Gorny PC, Jefferson City, and David A. Lunceford of The Lunceford Law Firm, Lee's Summit, for Hervey.

PATRICIA BRECKENRIDGE, Judge.

The Missouri Department of Corrections (department) appeals the trial court's judgment in favor of Deborah Hervey on her claim of disability discrimination under the Missouri Human Rights Act (MHRA). On appeal, the department claims that the trial court erred in overruling its objection to Ms. Hervey's verdict director because it did not include an essential element of her discrimination claim and erred in calculating punitive damages under section 510.265.¹ After opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10. Because the verdict-directing instruction did not require the jury to find an essential element of Ms. Hervey's disability claim, the judgment of the trial court is reversed, and the cause is remanded.

Facts and Procedural Background

Ms. Hervey worked as a probation officer for the department from 1983 to 1986 and from 2002 to 2005. She began her third tenure as a probation officer in 2007. On her first day back at work, she notified the department that she had a “mental disorder diagnosis” and that she may requireaccommodations as a result. At that time and on other occasions, Ms. Hervey requested accommodations for her claimed disability. Ms. Hervey received some accommodations but not others. For example, she was assigned a mentor and had the ability to play music in her workplace and take frequent breaks. However, she did not receive accommodation when she asked to work the 8:30 a.m. to 5 p.m. shift rather than the 8 a.m. to 4:30 p.m. shift or when she asked for use of an available private office rather than a cubicle. Also, despite her request for accommodation, she did not receive the three-week core training normally provided to all rehired employees who had more than a two-year break in employment or transfer to a different supervisor, even though another employee on probation recently had been granted such a transfer.

Consistent with the policy applicable to all returning employees that have not been employed by the department for more than two years, Ms. Hervey was required to complete a probationary period of nine months. At the end of the nine months, the department notified Ms. Hervey that she failed to complete her probationary period successfully and terminated her employment. The department claimed it found her work performance unsatisfactory because she was not carrying a full workload by the end of her probationary period and was late in filing reports.

Ms. Hervey brought suit, alleging that the department discriminated against her because of her disability and discharged her in retaliation for her complaints of discrimination. At the April 2010 trial, the department contested whether Ms. Hervey was legally disabled. The department challenged Ms. Hervey's disability throughout the presentation of evidence and in the closing argument.

Over the department's objection, the trial court submitted Ms. Hervey's proffered instruction No. 8—the verdict director for her claim for disability discrimination. The department offered an alternate verdict director that included a separately enumerated paragraph to require the jury to find specifically Ms. Hervey was disabled to find in her favor. The trial court refused the department's alternate instruction.

The jury returned a verdict for Ms. Hervey on her disability discrimination claim, awarded her $127,056 in actual damages and, after a bifurcated trial regarding punitive damages, awarded her $2.5 million in punitive damages.² After trial, Ms. Hervey filed a motion for attorney fees, expenses, costs, and other equitable relief, and the department filed a motion for judgment notwithstanding the verdict, requesting that punitive damages be reduced to the maximum amount authorized in section 510.265. The trial court sustained these motions, in part, and entered judgment for Ms. Hervey for $127,056 in actual damages, $36,288 for front pay and $97,382.50 attorney fees. Additionally, the trial court awarded Ms. Hervey punitive damages in the amount of $1,303,632.50. The department appeals.

On appeal, the department claims that the trial court erred in: (1) overruling the department's objection to Ms. Hervey's verdict-directing instruction because it did not explicitly require the jury to find that she suffered from a disability as required under the MHRA; and (2) awarding $1,303,632.50 in punitive damages because the trial court improperly included attorney fees in the amount of the net judgment used to calculate punitive damages, which is contrary to the plain language of section 510.265.

Verdict Director Must Submit Element of Disability

The department's first claim is that the trial court erred in submitting jury instruction No. 8, patterned after MAI 31.24, as the verdict director for Ms. Hervey's disability discrimination claim. The department asserts that submission of the instruction did not require the jury to find explicitly that Ms. Hervey was disabled, which is an element required by law for a claim under the MHRA.

Instruction No. 8 directed the jury as follows:

Your verdict must be for the Plaintiff if you believe:

First, Defendant discharged Plaintiff; and

Second, disability was a contributing factor in such discharge; and

Third, as a result of such conduct, Plaintiff sustained damage.

Instruction No. 8 did not require the jury to find expressly that Ms. Hervey was disabled. The trial court rejected the department's alternate instruction that required the jury to find in separate paragraphs that Ms. Hervey was disabled and that her disability was a contributing factor in her discharge. The department argues that the verdict director did not instruct the jury sufficiently and that the error relieved Ms. Hervey of her burden to prove all essential elements of her claim, thereby causing prejudice. The inquiry, then, is whether the trial court erred in submitting a verdict-directing instruction on a disability discrimination claim, patterned after MAI 31.24, which does not require the jury to find explicitly that the plaintiff was legally disabled.

Whether a jury was instructed properly is a question of law this Court reviews de novo. Hayes v. Price, 313 S.W.3d 645, 650 (Mo. banc 2010). Review is conducted in the light most favorable to the record and, if the instruction is supported by any theory, its submission is proper. Bach v. Winfield–Foley Fire Protection Dist., 257 S.W.3d 605, 608 (Mo. banc 2008). “Instructional errors are reversed only if the error resulted in prejudice that materially affects the merits of the action.” Id. The party challenging the instruction must show that the offending instruction misdirected, misled, or confused the jury, resulting in prejudice to the party challenging the instruction. Fleshner v. Pepose, 304 S.W.3d 81, 90–91 (Mo. banc 2010).

Generally, “[w]henever Missouri Approved Instructions contains an instruction applicable to the facts of a case, such instruction shall be given to the exclusion of any other instructions on the same subject.” Rule 70.02(b). Rule 70.02 further provides that departure from an applicable MAI constitutes error, its prejudicial effect to be judicially determined. Rule 70.02(b)-(c). If a particular MAI does not state the substantive law accurately, it should not be given. State v. Celis–Garcia, 344 S.W.3d 150, 158 (Mo. banc 2011); Spring v. Kansas City Area Transp. Auth., 873 S.W.2d 224, 226 (Mo. banc 1994) (“An instruction must be a correct statement of the law.”); Clark v. Missouri & Northern Arkansas R.R. Co., 157 S.W.3d 665, 672 (Mo.App.2004) (“If an instruction following MAI conflicts with the substantive law, any court should decline to follow MAI.”).

The source of the substantive law in this case is the statutes that govern an MHRA discrimination claim. Section 213.055, RSMo 2000, prohibits discrimination in the employment context because of an individual's race, color, religion, national origin, sex, ancestry, age, or disability. The section provides:

1. It shall be an unlawful employment practice:

(1) For an employer, because of the race, color, religion, national origin, sex, ancestry, age or disability of any individual:

(a) To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, national origin, sex, ancestry, age or disability....

Section 213.055, RSMo 2000. Section 213.111, RSMo 2000, creates a civil right of action for an employee against an employer for unlawful discrimination that allows an aggrieved employee to recover actual and punitive damages, court costs, and reasonable attorney fees.

A claim of disability discrimination under section 213.111 of the MHRA requires a plaintiff to show that: (1) the plaintiff is legally disabled; (2) the plaintiff was discharged; and (3) the disability was a factor in the plaintiff's discharge. See Medley v. Valentine Radford Commc'ns, Inc., 173 S.W.3d 315, 320–21 (Mo.App.2005). Because “[t]he purpose of the verdicting directing instruction is to hypothesize propositions of fact to be found or rejected by the jury,” the verdict directing instruction “must hypothesize the facts essential to the plaintiff's claim.” Lasky v. Union Elec. Co., 936 S.W.2d 797, 800 (Mo. banc 1997). Accordingly, the verdict director in a discrimination case must instruct the jury to find all three of...